We’ve covered many different types of fall protection systems and their components in this blog, but somewhere along the line, you may have heard the terms “active” and “passive” fall protection systems. Are you aware of what they mean?
A Passive System is much like it sounds – working whether you do something to it or not. A passive system is something that is in place, has no active mechanisms or moving parts, and requires no human interaction in order to function properly once installed. These tend to be your guardrails and netting.
Whether you are “using” a rail or not, it still stands, ready to do its job. Whether you fall into a net or not, it is still there. There is nothing for you to do in order to get them to work. There are no moving parts that are required to be used in order for it to save your life.
Active Systems, like Passive Systems, are just like they sound. They are dynamic. There are mechanisms at work that are protecting your employees’ lives. These systems tend to be your fall arrest and travel restraint systems. These systems involve a harness, some type of lanyard, and an anchor point (and, in the case of fall arrest, the need for a rescue plan). In order for these to work, your employees need to inspect and don equipment, adjust it, tie-off to an anchor point, and make sure they are using the equipment properly. If they fail to perform any of those steps properly, the fall protection may not work as intended.
Active systems tend to be used in lower traffic areas in which passive systems cannot be feasibly installed or that are constantly changing (such as in a construction setting) making something like a railing difficult.
Fall Prevention vs Fall Arrest
Don’t confuse active vs. passive with fall prevention vs. fall arrest. At first glance, it might seem that passive protection is the same as fall prevention and that active prevention is the same as fall arrest, but that doesn’t hold true. While rails (passive) are fall prevention, a net (passive) is fall arrest. While a PFAS comprised of a harness, shock-absorbing lanyard, anchor point (active) is fall arrest, a travel restraint system (active) is fall prevention.
Understanding the industry terminology goes a long way in helping sift through the “noise” of regulations, requirements, policies, and information you are going to have to deal with. Don’t ever assume you know what new terminology means. Seek out what you need to know. Often, a quick search on the internet will give you the full answer (as long as you’re using a reliable source). In other words, be active in increasing your industry knowledge and understanding, not passive!
By now, you may have heard: OSHA issued a new final rule in regards to electronic recordkeeping. Great! What the heck does that mean?
Well, funny you should ask, because I’ve got answers!
Just the Facts
Let’s start with the basics. The final rule was issued by OSHA on May 12, 2016 and will require certain employers to electronically submit their injury and illness data (300, 300a, and 301 forms) to the Agency annually (before these were only collected through an inspection, a survey, or when things like fatalities and hospitalizations required employers to notify OSHA).
Those required will be:
- Companies with 250* or more employees who are otherwise already required to keep these records.
- Companies with 20 to 249* employees in “certain industries”. This is primarily industries OSHA deems highly hazardous such as utilities, construction, manufacturing, retail, transportation, and health care.
- Other companies upon OSHA request.
*When determining your number of employees, you must include part time, seasonal, and temporary workers.
These requirements will phase-in beginning in July 2017 and will be fully implemented by March 2019.
In addition, the new rule includes new protections for employees against retaliation and will require OSHA to scrutinize incentive programs and post-accident drug/alcohol screening to ensure they don’t discourage reporting of illness and injuries.
In terms of anti-retaliation measures, employers must notify employees that they have a right to report work-related injuries and illnesses, that they will not be discharge or discriminate against for reporting them, and the employer is prohibited by law from discharging or discriminating against somebody for reporting a work-related illness or injury (effective August 16, 2016. While OSHA has had this in their purview for some time, the new rule allows OSHA to bring action even without an employee complaint of retaliation, which was previously required in order to begin an investigation).
As for discouraging employees to report, incentive programs must not punish an employee in any way for reporting an injury/illness. For example, if a monthly safety bonus is given, and an employee is not eligible if they have an OSHA recordable incident, OSHA may consider this retaliatory and/or a means to discourage an employee from reporting their illness or injury. In addition, blanket post-incident drug/alcohol testing will not be possible. While OSHA will still allow “for cause” testing and testing mandated by a government agency (i.e. – the DOT), the company is going to have to show that requiring drug/alcohol testing in any other instance was reasonable. For instance, if somebody gets a splinter that gets infected, they may not consider testing reasonable while if an employee swerved and crashed a company vehicle, they may.
What are the Consequences?
One major concern is that the reason many companies instituted blanket post-incident drug/alcohol testing was to eliminate any possibility of a false discrimination claim. The prohibition of this type of policy seems to open that back up. In addition, the National Law Review cited four consequences of this rule in a recent article they published. To paraphrase:
1 – Information will be used to identify new bad actors. Those reporting higher than normal injury and illness rates can expect their chances of inspection to dramatically increase.
2 – Electronic submission opens the door for data breaches and hackers. Personal information of injured employees could be vulnerable prior to the agency scrubbing that information from the files.
3 – This information will be made public, so companies could be negatively affected by this before they have a chance to defend themselves.
4 – The information will be made public, so may be used as a tool for unions to find companies whose workforce may be more interested in unionization.
5 – It’s a new weapon OSHA didn’t have before – the ability to cite any company reporting policy/procedure for being “unreasonable”.
This is now the law and, while it will take some time to fully implement, you can begin notifying and training your employees now. In addition, it’s probably time to review your incentive programs and drug/alcohol testing policies. Don’t let this catch you off guard. You know it’s coming, so make sure you don’t leave your company vulnerable to non-compliance.
Click here for more OSHA information.
We often focus here on what you need to do to keep your employees safe and to ensure your company is compliant with the law, but at some point in time, some of you are going to be involved in an OSHA inspection and the outcome may not be as favorable as you’d like. In this post, we’re going to break down the different types of OSHA violations you could receive and what each of them means. Possible penalties will be posted as the current number followed by the new number in parentheses, which take effect August 1st. Keep in mind that these penalties are for federal OSHA. State run programs may be different.
A de minimus violation is a violation that comes without monetary penalty. This may occur because OSHA recognizes that the violation, while non-compliant, poses no actual risk to the employee. An example of this has been cited numerous times in this blog: If somebody working on a roof – not performing roofing work, but something like HVAC installation – sets up a warning line 15’ from the edge of the roof, this is technically not compliant with OSHA regulations, however, OSHA recognizes that there is little to any risk to the employee. Therefore, OSHA has noted that they would issue a de minimus violation for this. For this type of violation, a citation is not issued. Instead, it is discussed verbally between the compliance officer and the company in violation and a note is made in the inspection file.
(up to $7,000 per violation/up to $12,500 per violation)
This classification is reserved for violations that do not pose an immediate physical threat to your employees. In other words, if you are in violation of a regulation such as being unable to provide proper recordkeeping documents or some instances of improper storage of materials, you could be issued an other-than-serious citation. There is much flexibility with the dollar amount at which OSHA will set this fine. Sometimes an other-than-serious will be accompanied by no penalty at all.
($7,000/$12,500 per violation)
Serious violations are just like they sound. With these types of violations there is significant chance of injury or death. Serious violations can be assessed when companies should have known of a hazard but didn’t, or insufficiently protected their employees. OSHA must assess $7000 per violation ($12,500 after August 1 of this year), but can adjust for a number of factors including company size. A situation where an employee has been provided insufficient fall protection equipment could be cited as a Serious violation.
(up to $70,000 per violation/up to $125,000 per violation)
If Serious is serious, then Willful is extremely serious. This classification is when somebody intentionally violates OSHA regulations or knowingly and willingly puts their employees in harm’s way. In the event of a fatality, this becomes a criminal situation. Perhaps a company has had people injured in scaffold collapses due to poor construction and continues to put their employees on that bad scaffolding. This could earn them a Willful violation. In a fatal situation, the fines come with a minimum of $250,000 for an individual and $500,000 for a corporation, as well as possible jail time of 6 months (double if it is a second conviction).
This is a violation of an OSHA regulation for which the company has already been issued a citation within the last three years (unless that citation is currently under appeal). Understand that this does not have to be at the same location or even the same state, so it is in your best interest, as a company, to ensure you are communicating the results of an OSHA inspection and all lessons learned between all offices/projects within your company.
Failure to Abate
When OSHA issues you a citation, they give you a date by which you must abate it. Failure to do so could result in a penalty of $7,000 for each day you fail to abate the violation.
Falsifying Records – OSHA can bring a criminal fine of $10,000, up to 6 months in jail, or both.
Violating Posting Requirements - $7,000
Assaulting a Compliance Officer (or otherwise Resisting, Opposing, Intimidating or Interfering with) – This is a criminal offense. An offender could be fined up to $5,000 and face up to 3 years in prison.
As they say, “an ounce of prevention is worth a pound of cure.” Do everything you can to keep your workers safe and stay compliant so that you will not need to know the difference between the various citations. But, if you find yourself facing one (or many) don’t be afraid to reach out for help. The citation/abatement problem can be a minefield for those unfamiliar with the process and a consultant can help you navigate it safely.